Citation Nr: 9824603
Decision Date: 08/14/98 Archive Date: 07/27/01
DOCKET NO. 97-31 225 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in North
Little Rock, Arkansas
THE ISSUE
Entitlement to a permanent and total disability rating for
pension purposes.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
C. Hancock, Associate Counsel
INTRODUCTION
The appellant served on active duty from November 1949 to
February 1953.
This appeal arises from a rating decision of November 1996
from the Department of Veterans Affairs (VA) North Little
Rock, Arkansas, Regional Office (RO), in which the RO
determined that a nonservice-connected disability pension was
not warranted.
The appellant was afforded a personal hearing at the RO in
July 1997.
REMAND
The appellant and his representative contend, in essence,
that nonservice-connected pension disability benefits are
warranted as a result of the nature of his multiple
disabilities. In April 1998, the representative requested
that the case be remanded in that a formal rating decision
with identifiable diagnostic codes has not be entered
regarding the disabilities addressed by the appellant in the
course of his July 1997 hearing.
VA has a duty to assist the appellant in the development of
facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991); 38 C.F.R. § 3.103(a) (1997). The United States Court
of Veterans Appeals (Court) has held that VA's duty to assist
the appellant in obtaining and developing available facts and
evidence to support his claim includes obtaining adequate VA
medical examinations. Littke v. Derwinski, 1 Vet. App. 90
(1990). The Court has also held that when the medical
evidence is inadequate, VA must supplement the record by
seeking an advisory opinion or ordering another medical
examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and
Halstead v. Derwinski, 3 Vet. App. 213 (1992). Following a
comprehensive review of the record, it is the opinion of the
Board that further development of the appellant's claim is
necessary.
The record reflects that pursuant to a RO rating decision,
dated in November 1996, the appellant's disabilities were
specified as follows: residuals of a lumbar injury (20
percent). The combined rating was 20 percent. A sStatement
of the case, sent to the appellant in June 1997, noted that
his lumbar spine disorder had been rated pursuant to
Diagnostic Code 5292 of VA's Schedule for Rating Disabilities
(Schedule).
The report of an October 1996 VA examination indicated that
the appellant complained of injuring his back 5 or 6 years
ago as a result of falling from a scaffold. He reported
continuing complaints of intermittent non-radiating low back
pain and stiffness since the time of the injury. The
diagnosis was residuals of lumbar spine injury.
As noted above, the appellant was afforded a personal hearing
at the RO in July 1997. He testified that, in addition to
his back problems, which causes him pain, he also suffers
from bilateral knee difficulties, hemorrhoids, and prostate-
related difficulties. He also asserted that he had injured
his finger about a year ago
The report of an August 1997 VA medical examination, the most
recent examination of record of the appellant, shows that he
complained of pain and stiffness in both of his knees, which
are bothered by weather changes, for approximately two years.
He indicated that he takes over-the-counter pain medication.
He also complained of suffering from hemorrhoids for many
years, with this condition causing him prolapse following
bowel movements and, occasionally, on lifting. Occasional
bleeding associated with bowel movements was also indicated.
Regarding his prostate complaints, he added that he suffers
from occasional nocturia, with more frequency during the
daytime. The following diagnoses were supplied: mild knee
condition, probably degenerative arthritis; external and
internal hemorrhoids, with a history of prolapse associated
with bowel movements; and prostate condition observed, but
not currently manifested. The examiner also commented that
the appellant did complain "considerable more" about
trouble with his back than regarding the above-diagnosed
conditions.
In regards to the appellant's complaints regarding his back
and knees, the Court has held that when a diagnostic code
provides for compensation based upon limitation of motion,
the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1995) must also
be considered, and that examinations upon which the rating
decisions are based must adequately portray the extent of
functional loss due to pain "on use or due to flare-ups."
DeLuca v. Brown, 8 Vet.App. 202 (1995). After reviewing the
recent VA examinations, the Board is of the opinion that
another evaluation is warranted in order to comply with
Felucca.
The Court has rendered several decisions, which impact
significantly on claims for pension benefits. In Roberts v.
Derwinski, 2 Vet. App. 387 (1992), the Court held that each
disability in a pension case must be assigned a percentage
rating and the RO should discuss the diagnostic codes which
it utilized in reaching its decision. (emphasis added). In
Brown v. Derwinski, 2 Vet. App. 444 (1992), the Court held
that a pension claim must be considered under both the
"average person" standard delineated in 38 U.S.C.A. § 1502(a)
(West 1991); 38 C.F.R. § 4.15 (1997) and the unemployability
standards set forth in 38 C.F.R. §§ 3.321, 4.17 (1997).
A review of the statement of the case and supplemental
statement of the case reflects that the appropriate
diagnostic codes for the appellant's knees, hemorrhoids, and
prostate conditions have not been formally rated nor has the
rating criteria been provided to the appellant.
Accordingly, to ensure that VA has met its duty to assist the
claimant in developing the facts pertinent to the claim and
to ensure full compliance with due process requirements, this
case is REMANDED for the following:
1. The appellant should be asked to
provide a list of all medical treatment
that he has received since August 1997,
if any. The Board is interested in
obtaining all records of treatment
provided to the appellant by VA or
private sources. He should be asked to
complete the necessary authorizations for
release of private information to the VA,
if necessary. The RO should obtain all
records that are not already in the
claims file. The appellant should be
informed that he has a right to present
any additional evidence or argument while
the case is in remand status. See
Quarles v. Derwinski, 3 Vet. App. 129,
141 (1992).
2. The RO should schedule the appellant
for VA examination by an orthopedist for
the purpose of ascertaining the severity
of all orthopedic disabilities, to
include his finger (not identified), back
and knees. The examiner should be
afforded an opportunity to review the
appellant's claims file and a copy of
this Remand prior to the examination. It
is requested that the examiner obtain a
detailed occupational history. The
examination should include all necessary
tests and studies, to include X-rays.
The examiner should set forth findings
and opinions concerning the extent to
which occupational and social impairment
is experienced by reason of any
identified disabilities or conditions.
Each orthopedic disability should be
examined for degrees of both active and
passive range of motion and any
limitation of function. The orthopedist
should also be asked to note the normal
range of motion of the lumbosacral spine,
knee joints, finger, and any other
involved joints.
Additionally, the orthopedist should be
requested to determine whether the
appellant's orthopedic disabilities,
including those of the finger, lumbar
spine and knees, exhibit weakened
movement, excess fatigability, or
incoordination; and, if feasible, these
determinations should be expressed in
terms of the degree of additional range
of motion loss or favorable or
unfavorable ankylosis due to any weakened
movement, excess fatigability, or
incoordination. The orthopedist should
also be asked to express an opinion on
whether pain could significantly limit
functional ability during flare-ups or
when used repeatedly over a period of
time. This determination should, if
feasible, be portrayed in terms of the
degree of additional range of motion loss
or favorable or unfavorable ankylosis due
to pain on use or during flare-ups. It
is requested that the examiner comment on
the impact the disabilities diagnosed
have on the appellant's ability to
maintain gainful employment.
3. The veteran should be accorded a VA
general medical pension examination to
determine the severity of any
disabilities claimed by the veteran, to
include hemorrhoids and a prostate
condition. All necessary tests and any
specialized examination deemed necessary
should be performed. The claims folder
and a copy of this remand must be made
available and reviewed by the examiner
prior to the examination.
4. The appellant should be informed of
the consequences of his failing to appear
for the above-discussed examinations.
See 38 C.F.R. § 3.655 (1997).
5. After the action requested above has
been completed to the extent possible,
the RO should again consider the claim
for pension, to include consideration of
38 C.F.R. §§ 4.40, 4.45 (1997) and
VAOPGPREC 23-97, if applicable. The RO
should assign evaluations for all
disabilities diagnosed. The RO should
then consider the appellant's claim under
the "average person" and
"unemployability" standards under 38
U.S.C.A. § 1502(a)(1) (West 1991); 38
C.F.R. §§ 3.321(b)(2), 4.15, 4.16, 4.17
(1997).
If the decision remains adverse to the appellant, he and his
accredited representative should be furnished a supplemental
statement of the case, which should set forth an explanation
of the RO's latest deliberations under all of the foregoing
criteria of the "average person" and "unemployability"
standards. This supplemental statement of the case should
also contain all applicable laws and regulations and
diagnostic criteria under which each of the veteran's ratable
disabilities has been evaluated. The veteran and his
representative should be given the opportunity to respond
thereto with additional argument and/or evidence. The case
should then be returned to the Board for further appellate
consideration.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the Court for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
ROBERT P. REGAN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).